March 2009

Blow the Whistle... or Do Something

In two massive violations of public trust, attention focuses on the key bad men.  On Wall Street, Bernard Madoff goes to jail for a decades-long fraud on thousands of investors.  In Luzerne County, Pa, two judges took millions to sell out juvenile offenders and other litigants in their courts.  I want to know about their supply chain:  Where were the lawyers, probation officers and court staff in Luzerne?  Where were the traders, office administrators and accountants on Wall Street?

I keep coming back to the observation often credited to the 18th century statesman Edmund Burke that “it is enough for the forces of evil in the world to prevail, for a few good men to do nothing.”  Is it naïve to expect people whose livelihoods depend on a felony, or on the felon, to blow the whistle on the crime?   Is it pious to think that someone should have done the right thing? 

Picture an imagined scene in Luzerne.  A small-town lawyer who depends on the recognition of the court to receive appointments to represent indigent parties, sees one after another young person sent into state custody for minor violations and without representation by counsel.  He suspects some connection between the judge and the custodial institution.  Who does he tell?  Another judge?  He can’t be sure whether other judges are on the take.  Court administration?  No more court appointments, no more income, and ironically, even a sullied reputation in the community, a kind of professional suicide. Up to the moment they are embraced as heroes, whistleblowers are often viewed as shrill, marginalized complainers.

Ethical choices sound lofty, but they are rather common.  Pay taxes on cash income?  Voice objection to questionable conduct?  Decline an offer of help that has a price tag?

What have we learned about public trust and the duty we owe to each other?

First, one’s moral compass needs to function on its own.  Ethical choices often come in the darkness of solitude and secrecy.  We are often faced with choosing to do the right thing when no one is looking, or when some one is demanding silence or misbehavior.  The canons of ethics state that “the legal profession is largely self-governing” – a weighty responsibility.  There is no substitute for a trustworthy leader, but sometimes one must act despite the actions or inactions of the boss.  Not so easy, for sure.

Second, we must distinguish the prerogatives of management from abuses of power.  Picture the co-worker or friend who is always convinced that the company or the government is … bad, wrong, corrupt.  It might be naïve to expect a business leader to validate every corporate decision with those who will be impacted.  In any workplace and any courtroom, decisions are made that some will dispute as imprudent or even unfair.  The appellate process is supposed to correct for errors in law and judicial judgment, yet remains demonstrably inadequate to rein abuses of judicial office.  Profit margins and SEC oversight are supposed to check the Madoffs of the world.  We need nomenclature and dialogue that names the difference between the tolerable and the unacceptable, and toothy review mechanisms that catch the latter.

Third, in the ethical workplace, leadership can set the rules.  As a manager, I must make clear the path for the whistleblower;  if you have a problem with someone’s behavior, tell me and I will act.  If you have that kind of problem with me, tell my boss.  Either way, I guarantee that no harm will come to you for telling.  Is that naïve?

Finally, there is the sin of omission.  In his book “The Moral Choice”, philosopher Daniel Maguire writes that “deliberate omission is not outside the circle of human moral responsibility.”  He notes that, in the biblical Last Judgment, there may be a penalty for failing to feed the poor.  What of failing to blow the whistle on illegal or unethical practices?

In the movie version of “A Man For All Seasons”, Thomas More calls out a lawyer colleague who sells his trust and principles for appointment to a high office:  “What price a man’s soul?” asks More, on his way to paying the highest price for his own ethical choice.

There were many individuals who might have stood in the way of years of scandalous practices only recently uncovered.  So many opportunities to break the chain of abuses were declined.  We now know the price paid by the youths who were illegally detained for years on bogus charges, and the billions lost by duped investors.  What was the price of silence, for the many who might have objected?  Are these pious rantings?  Perhaps, if this were not so frequently occurring!